By the nature of the injury itself, trial attorneys are faced with real challenges when representing an individual with mild TBI caused by a motor vehicle crash or some other equally traumatic event. By definition, mild TBI results in minimal, if any, loss of consciousness and negative findings on traditional objective neurodiagnostic tests such as MRIs and CT scans. Further, neurological examinations and mental status examinations usually fail to identify any serious neurological abnormality.
Neuropsychological testing represents the only objective medical or scientific proof that a person with mild TBI has even sustained an injury. When representing the “average” person who has sustained a mild TBI, these challenges are overcome and the case often is proven by the use of lay witnesses who are able to present a “before and after” story that, in and of itself, is capable of explaining to the jury the differences and problems the individual is experiencing as a result of the injury.
Representing the professional who has sustained a mild TBI naturally presents an even greater challenge. As a professional usually possesses higher than average intellectual skills and executive functioning, he/she will–more than any other group of individuals–refuse to acknowledge any deficits openly. Historically, these individuals will not admit the magnitude of impairment to friends, colleagues and other traditional lay witnesses, instead going through long periods of denial during which they refuse to acknowledge–even to themselves–the existence of any problems.
Professionals tend simply to “buckle down” and work harder than before, expending increased energy and developing compensatory strategies to overcome any problems and/or impairments. The last thing the professional wants is for anyone to discover that he/she has sustained a TBI. Unlike other catastrophic injuries, no one “brags” or volunteers that he/she has sustained a TBI, for fear that his/her patients and clients will look elsewhere for services.
Often, the professional’s employees are the first individuals to appreciate the subtle differences and problems he/she exhibits. These employees (i.e., office managers, secretaries, nurses) have a unique inter action on a day-to-day basis with the professional, allowing them to observe and note the hidden-but often devastating-damage done to his/her level of functioning. As these subordinates and co-workers often are afraid to say anything, they begin to cover up the “problems” of their employer by smoothing over complaints from clients and patients, helping develop compensatory strategies and fixing errors that occur. Over time, this unstated and unacknowledged assistance continues, developing into ordinary office procedure.
Nevertheless, the professional’s number of patients or clients dwindles gradually, as first the most perceptive and then even the less perceptive of them begin to appreciate that something is not “right” with their doctor, lawyer or other professional. Unfortunately for the trial attorney who is representing such a professional, the timeframe during which this occurs often is substantial and too far along in the case for there to be any appreciable difference in the client’s income.
Another challenge faced by trial attorneys preparing the professional’s mild TBI case beacuse of the inadequacies present in neuropsychological testing. Neuropsychological testing is predicated partially in comparing functioning on various tests with the “norm” (i.e., a group that represents the 50th percentile in our population).
The professional, however, was never at the norm, rather testing well above it. Even with the residuals from a mild TBI, the professional often will score well above the normal “unimpaired” population. This underscores the necessity of a specific valid pre-morbid baseline for professionals and others testing higher than the norm.
With the assistance of the trial attorney, the neuropsychologist must have access to the client’s school records, standardized test scores and other records which will document the high level of functioning prior to the specific traumatic event.